Robert Novak: Bush's first justice?

By Robert D. NovakCreators Syndicate

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WASHINGTON (Creators Syndicate) --White House Counsel Alberto Gonzales succeeded in weakening the government's intervention in the University of Michigan racial preference dispute, but at a potentially heavy personal cost. He increased the difficulty for his friend and patron, George W. Bush, to make him a Supreme Court justice.

The petition in the Michigan case, as it arrived at the White House from Solicitor General Theodore Olson, finally would have placed a president unequivocally against forcing racial diversity on university admissions. Gonzales, who has publicly supported racial preferences, revised the petition. Accepted by the president, it advocates the desirability of government-sponsored diversity if achieved short of quotas.

Such temporizing recalls sidestepping on racial questions by the elder President Bush, a model his son has sought to avoid. Gonzales's role also adds to warnings from the younger Bush's conservative base not to repeat his father's grave political blunder: the selection of David Souter to the high court. Like Souter, Gonzales is a former state Supreme Court justice whose record promises easy Senate confirmation and subsequent liberal decisions.

The problem for the president was intensified by the Trent Lott affair. After Bush guaranteed Lott's fall as Senate majority leader by abandoning him, Democrats insisted that was not enough to make the president bigotry-free. He would be tested by two forthcoming decisions: whether to reappoint District Judge Charles Pickering to the appellate bench and whether to intervene against the University of Michigan in the Supreme Court case.

The president was not intimidated, as his father often was when the race card was played against him. The Pickering reappointment was easy enough for Bush, but the Michigan case was more difficult. Counselors inside the White House, including Gonzales, advised the president to keep out of the case entirely -- maintaining the avoidance by past presidents of evaluating the constitutionality of racial discrimination for the sake of diversity.

Ted Olson weighed in with a strong brief against racial preferences, arguing that discrimination cannot be used to achieve racial diversity. Bush agreed to intervene, but Gonzales started carving up Olson's language. This was not a matter of the president presiding over a debate between Olson and Gonzales. The solicitor general never got to talk to the president, except through Gonzales.

The result was a brief opposing the Michigan system because it resembles "rigid quotas" but defending other "measures that ensure diversity." According to associates of Olson, he was so disturbed by a defense of discrimination to support diversity that he had pangs of conscience in accepting it. As the government's lawyer, however, he had no choice but to argue in behalf of what the head of government approved.

Gonzales's views on affirmative action became widely known in Washington last year when, at a meeting of the conservative Federalist Society, he announced his support of preferences. Around the same time, in Philadelphia at a Heritage Foundation forum, he engaged in sharp debate with racial preference foe Roger Clegg of the Center for Equal Opportunity. Gonzales used Bill Clinton's very words in saying Bush seeks an administration "that looks like America."

That added to concern about Al Gonzales as a Supreme Court justice-in-waiting that has been building within Bush's political base the last two years. Gonzales resigned after 23 months on the Texas Supreme Court (appointed by Gov. George W. Bush) to come to the White House, expecting to become the first Hispanic American on the U.S. Supreme Court.

He had pulled the Texas court leftward, including decisions favorable to trial lawyers on tort cases. What most disturbed conservatives was his majority opinion invalidating a statute requiring parental notification of abortion by a minor. Democratic senators who last year blocked confirmation of Texas Supreme Court Justice Priscilla Owen as a federal appellate judge repeatedly cited Gonzales's attack on her minority opinion as an "unconscionable act of judicial activism."

That alone led prominent Catholic conservatives and other foes of abortion to inform the White House that Gonzales is unacceptable for the high court. Now, he is blamed for a political misstep by the president. Diluting Bush's position on racial quotas did not abate the fury of the left (or even win full support from Secretary of State Colin Powell and National Security Adviser Condoleezza Rice). It did recall the mistakes of his father.